727 F.Supp. 625 (CIT. 1989), 80-5-00755, Asahi Chemical Industry Co., Ltd. v. United States

Docket Nº:Court No. 80-5-00755-S.
Citation:727 F.Supp. 625
Party Name:ASAHI CHEMICAL INDUSTRY CO., LTD., Plaintiff, v. UNITED STATES, Defendant.
Case Date:December 06, 1989
Court:Court of International Trade

Page 625

727 F.Supp. 625 (CIT. 1989)




Court No. 80-5-00755-S.

United States Court of International Trade.

Dec. 6, 1989

Barnes, Richardson & Colburn, James S. O'Kelly and Leonard Lehman, New York City, for plaintiff.

Stuart M. Gerson, Asst. Atty. Gen.; David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., Velta A. Melnbrencis, New York City; of counsel: Tina M. Stikas, Atty. Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, D.C., for defendant.



The defendant United States moves, pursuant to Rules 1, 59, and 60 of the Rules of this Court, for a rehearing of the opinion

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and remand order issued in Asahi Chemical Indus. Co. v. United States, 12 CIT 690, 692 F.Supp. 1376 (1988). Defendant seeks dismissal of this case in its entirety for lack of jurisdiction or, alternatively, vacatur of that portion of Asahi Chemical pertaining to the standing issue. Two main questions are raised: (1) whether revocation of an antidumping duty order by the Department of Commerce, International Trade Administration (Commerce), during the pendency of judicial consideration of the order renders the case moot; and (2) whether the court erroneously decided that plaintiff's grievance is against the antidumping duty order published by Commerce, rather than against the dumping determination of the Secretary of the Treasury which the plaintiff lacked standing to contest under the applicable law. The defendant's motion for a rehearing is granted on the ground that the revocation determination of Commerce rendered this case moot; therefore, the Court does not discern the necessity of analyzing the alternative standing issue.


Plaintiff is a Japanese exporter/manufacturer of spun acrylic yarn (SAY). On October 25, 1979, the Treasury Department (the administrative arm of the United States antidumping laws until the promulgation of the Trade Agreements Act of 1979 on January 1, 1980) published a notice of its determination that SAY from Japan was being sold at less than fair value (LTFV). 44 Fed.Reg. 61,492. The weighted-average dumping margin for the plaintiff was found to be 29.05%. Id. at 61,493.

In a separate investigation, the United States International Trade Commission (ITC) examined certain data to determine whether an industry in the United States was being, or was likely to be, injured, or was prevented from being established, by reason of LTFV sales of SAY from Japan. The ITC had yet to publish the final results of its investigation when the Trade Agreements Act of 1979 became effective. Consequently, the ITC terminated its pending investigation of SAY from Japan and initiated a new injury investigation pursuant to 19 U.S.C. § 1673d. 45 Fed.Reg. 3403 (Jan. 17, 1980). On March 26, 1980, the ITC published its final determination of material injury with regard to SAY from Japan. 45 Fed.Reg. 19,682.

On April 9, 1980, Commerce published an antidumping duty order, consisting of the ITC's material injury determination and the Treasury's final LTFV determination. 45 Fed.Reg. 24,127. Accordingly, "[a]ll unappraised entries of [SAY from Japan] made on and after July 13, 1979, the date on which liquidation was suspended, [became] liable for the possible assessment of antidumping duties. Deposits of estimated...

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